ADA Confusion?

3 steps to make the ADA’s interactive process go more smoothly.
 
By Kevin Curry
 
The Americans With Disabilities Act (ADA) has presented an ongoing administrative challenge for employers since it became law in 1990. The passage of the ADA, which afforded Americans living with disabilities strong protection from discrimination, created a new level of complexity and cost for employers. According to the National Bureau for Economic Research, since July 1992, employers have paid more than $174 million in EEOC settlements over ADA complaints, not counting administrative costs and legal fees. Confusion around how to administer the ADA seems destined to remain an issue, since it’s partly because of the Act’s wording.
 
The ADA requires employers to engage in an “interactive process.” Here’s how it works: An employee has a physical or mental disability that is limiting the employee’s ability to perform the essential functions of his or her position. The employer must engage in a discussion with the employeeto find out if a reasonable workplace accommodation will enable the employee to perform those essential functions. Among the questions raised by employers: When are they required to begin a discussion about accommodation? How do you know if an employee is entitled to an accommodation? What if the accommodation violates company rules, or costs the company money?
 
Unsure If They’ve Done Enough To Accommodate
Reed Group teamed with Spring Consulting to study leading ADA administration issues. To learn more about how companies were handling these issues, 270 United States- based employers of all sizes were surveyed during the spring and summer of 2013. Most (84 percent) of the respondents have 1,000 or more employees, but the issues and findings identified in the survey are experienced by all employers, regardless of size.
 
The survey addressed the following key questions:
• What are employers doing to comply with ADA regulations?
• What issues are they struggling with?
• How are they treating leave as an accommodation?
• What administrative practices do they have in place?
 
What emerged from the study was a clear picture of the largest employer challenges associated with the ADA:
• Half of survey respondents have difficulty or extreme difficulty with considering whether or not an accommodation would impose an undue hardship on the business.
• The ADA-related task rated the most difficult by employers is recognizing when they can deny leave requests, followed closely by determining how long a leave should be.
• ADA tasks that cause disruption or burdens to organizations include:
• Coordinating with FMLA and other leaves
• Clarifying essential functions
• Determining what is a reasonable intermittent absence
• Managing staffing-related issues
 
How can employers improve their internal practices to avoid ADA-related complaints and legal action?

Prepare upfront.
Employers need to update job descriptions to include essential functions. The survey showed that 30 percent of employers hadn’t done so. If job descriptions and essential functions of every job aren’t clearly defined, employers are missing a simple way to limit exposure to potentially costly ADA claims.
 
Also, consider policies and procedures. Define, and clearly state, how the organization handles leave as an accommodation. Eliminate any language that refers to automatic termination after leave for medical reasons; a review process should be outlined in your policies. Implement processes for employees to use to report into the company during leaves; set clear expectations on reporting timing and leave length.
 
Use technology. The most accurate and consistent ADA administration is typically done by employers who are leveraging technological tools. Among the key takeawaysin the Reed Group/Spring Consulting survey, the results showed many (67 percent) are still using paper files to keep track of activities associated with the ADA. Less than half (44 percent) use Excel spreadsheets, and other types of calendaring tools are used by even fewer respondents. Software to track absences is used by 22 percent of respondents and 35 percent rely on workflow/case management software. Ideally, overall workflow should be tracked with software to assure complete understanding of absence patterns.
  
Integrate your data. Every employer can, and should, develop process flows and key interaction points with their vendor partners—insurance companies and third-party administrators—and internal resources so that consistent messages are being conveyed and available tools and resources are being applied.
 
Data integration is possibly the best way to eliminate inconsistencies, and the benefits include (but go far beyond) ADA administration improvement. In the past, vendors
and employers tended to handle intake separately and gather often-overlapping information for each case. With integrated data, one vendor opens the case and gathers all the pertinent data required by every vendor who works on the case. The data is then shared with the other vendors via scheduled data feeds or uploads.
 
Interpreting the ADA isn’t going to get less complicated any time soon; employers need to plan ahead and set the groundwork for successful ADA administration over the long term.
 
 
 Kevin Curry is senior vice president of sales and marketing and national practice leader for the Reed Group.
 

Posted December 24, 2013 in Sourcing

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